A plea of double jeopardy by accused employers: are there limits?

Abstract

The rule against double jeopardyentails that, generally, apersoncannot be charged more than oncefor the same, or substantially the same, offenceor misconduct in respect of whichhe or she has been convicted or acquitted. Under the Constitution of the Republic of South Africa, 1996, this rule ispart of an accused’s right to a fair trial. This article shows that every employerprosecuted for allegedlynotcomplyingwith either employees’ tax obligations in the Fourth Schedule of the Income Tax Act 58 of 1962,or for an offence at common law,is entitled to raise the procedural defence of double jeopardy. This article arguesthat the recent judgment in Grayston Technology Investment (Pty) Ltd v Sis authority for the proposition that, in any such prosecution,an accused employermay invoke double jeopardy, even if the prior punishment or acquittal stems from non-criminal proceedings under the Tax Administration Act 28 of 2011 before theTax Court or the Tax Board. Akeyhypothesis of this article is the argument thatdoublejeopardyought not to be applied as an inflexible procedural rule in every instance.This is because such an approach would lead to the undesirable result of undermining the Legislature’s objective in catering for criminal and civil sanctionsin respect of certain violations of fiscal legislation. No hard-and-fast rules can be laid down in advance as to when double jeopardy maybe successfully invoked.